R.J.F. v. C.M.F., (2014) 575 A.R. 125

• Judge: Conrad, Berger and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: Wednesday May 14, 2014
• Citations: (2014), 575 A.R. 125;2014 ABCA 165

R.J.F. v. C.M.F. (2014), 575 A.R. 125; 612 W.A.C. 125 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. MY.059

R.J.F. (respondent/applicant) v. C.M.F. (appellant/respondent)

(1301-0288-AC; 2014 ABCA 165)

Indexed As: R.J.F. v. C.M.F.

Alberta Court of Appeal

Conrad, Berger and Costigan, JJ.A.

May 14, 2014.

Summary:

Parents of a son born in 2005 separated in 2006 after five years' marriage. In a 2007 agreement, the mother had primary care of the son, with the father having access every second weekend. Neither parent could change the son's permanent residence without the consent of the other or a court order. The custody and access provisions were included in the divorce judgment, but the consent requirement for change of residence was not. The mother entered a new relationship in 2008, resulting in a second child born in 2010. In 2011, the father consented to the mother temporarily moving with the son from Calgary to Comox, British Columbia, to renovate her new partner's house for sale. In 2012, the mother sought the father's consent to a permanent relocation to Comox. The father refused to consent. Mediation was unsuccessful. The father successfully applied for an order that his son be returned to Calgary. The mother returned to Calgary with the son. An interim custody order provided alternating week on/week off shared parenting pending a hearing.

The Alberta Court of Queen's Bench, after considering some (but not all) of the Gordon v. Goertz (SCC) factors, held that it was in the best interests of the son to remain in Calgary. The father was awarded primary care of the son. The mother appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting in part, allowed the appeal. The trial judge erred in interpreting and applying Gordon v. Goertz respecting mobility rights. The court ordered that primary care be returned to the mother, with access to the father.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1865

Custody and access - Duties and rights of custodian - To remove child from jurisdiction - Parents of a son born in 2005 separated in 2006 after five years' marriage - In a 2007 agreement, the mother had primary care of the son, with the father having access - Neither parent could change the son's permanent residence without the consent of the other or a court order - The mother entered a new relationship in 2008, resulting in a second child born in 2010 - In 2011, the father consented to the mother temporarily moving with the son from Calgary to Comox, British Columbia, to renovate her new partner's house for sale - In 2012, the mother sought the father's consent to a permanent relocation to Comox - The father refused to consent - The father successfully applied for an order that his son be returned to Calgary - The mother returned to Calgary with the son - An interim custody order provided for shared parenting pending a hearing - The trial judge, after considering some (but not all) of the Gordon v. Goertz (SCC) factors, held that it was in the best interests of the son to remain in Calgary - The father was awarded primary care of the son - The Alberta Court of Appeal allowed the mother's appeal and ordered that primary care be returned to her - Conrad and Costigan, JJ.A., held that the trial judge erred in failing to assess the extent of the son's bond with the mother and the effect that separation from the mother might have on the son - Costigan, J.A., found the error dispositive of the appeal and found it unnecessary to consider the other six errors as found by Conrad, J.A. - Berger, J.A., dissenting in part, would also allow the appeal and restore the mother's primary care, but on the basis of "a misapprehension of the significance in fact and in law of the mother's change of plans" in first temporarily relocating and then seeking to permanently relocate.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See Family Law - Topic 1865 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241; 134 D.L.R.(4th) 321, refd to. [para. 14].

MacPhail v. Karasek (2006), 409 A.R. 170; 402 W.A.C. 170; 2006 ABCA 238, refd to. [para. 24].

Milton v. Letch, [2013] A.R. Uned. 176; 2013 ABCA 248, refd to. [para. 26].

Christmas v. Christmas (2005), 367 A.R. 172; 346 W.A.C. 172; 2005 ABCA 213, refd to. [para. 28].

H.S. v. C.S. (2006), 279 Sask.R. 55; 372 W.A.C. 55; 2006 SKCA 45, refd to. [para. 28].

Rushinko v. Rushinko (2002), 161 O.A.C. 85 (C.A.), refd to. [para. 28].

Roebuck v. Roebuck (1983), 45 A.R. 180; 148 D.L.R.(3d) 131 (C.A.), refd to. [para. 38].

Sangha v. Sandhar, [2013] A.R. Uned. 181; 2013 ABCA 259, refd to. [para. 52].

R.L. v. M.P. (2008), 437 A.R. 330; 433 W.A.C. 330; 2008 ABCA 313, refd to. [para. 85].

E.S.C. v. D.A.P. et al. (1997), 206 A.R. 276; 156 W.A.C. 276 (C.A.), refd to. [para. 91].

Gramaglia v. Alberta (Minister of Government Services) et al. (2007), 404 A.R. 233; 394 W.A.C. 233; 2007 ABCA 93, refd to. [para. 92].

Nova, An Alberta Corporation v. Guelph Engineering Co. and Daniel Valve Co. et al. (1989), 100 A.R. 241; 1989 ABCA 253, refd to. [para. 94].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6, refd to. [para. 94].

Counsel:

C. Thompson, for the appellant;

P.G. Leamy, for the respondent.

This appeal was heard on January 15, 2014, before Conrad, Berger and Costigan, JJ.A., of the Alberta Court of Appeal.

On May 14, 2014, the judgment of the Court of Appeal was filed and the following opinions were filed:

Conrad, J.A. - see paragraphs 1 to 72;

Costigan, J.A., concurring in the result - see paragraphs 73 to 75;

Berger, J.A., dissenting in part - see paragraphs 76 to 96.